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Terms and Conditions

 

TERMS AND CONDITIONS

Xyken's 3D scanner app (including SureScan(TM) 3D Scanner app, SnugFit O&P 3D scanner app or its customized versions etc.)  is licensed to you (End-User or Client) by Xyken, LLC located at 7921 Jones Branch Dr., #392, McLean, VA 22102, United States (hereinafter: "Xyken" or "Licensor"), for use only under the terms of this License Agreement (hereinafter: "Agreement").

By downloading the Application from the Apple AppStore, and any update thereto (as permitted by this License Agreement), you indicate that you agree to be bound by all of the terms and conditions of this Agreement and that you accept this Agreement.

The parties of this License Agreement acknowledge that Apple is not a Party to this License Agreement and is not bound by any provisions or obligations with regard to the Application, such as warranty, liability, maintenance, and support thereof. Xyken LLC, not Apple, is solely responsible for the licensed Application and the content thereof.

All rights not expressly granted to you are reserved.

 

1.THE APPLICATION

Xyken's 3D scanner app (hereinafter: Application) is a piece of software created to Enable users to create color 3D scans with TrueDepth or FaceID sensor-equipped mobile device and customized for Apple mobile devices. It is used for 3D capture and editing.

 

It is the responsibility of the Client to ensure that their cloud data server complies with industry-specific regulations, such as the Health Insurance Portability and Accountability Act (HIPAA) and the Federal Information Security Management Act (FISMA). The Application does not guarantee compliance with such regulations. Therefore, if Client’s use of the Application is subject to these laws, it is Client’s responsibility to ensure the Application does not violate government regulations.

 

2.SCOPE OF LICENSE

2.1. The Licensor grants you, as the Client, a license to use the Application solely on your own Apple-branded Products or those of authorized users associated with your account through volume purchasing or a purchase plan. However, you may not transfer or sublicense this license to any third party, nor may you sell, rent, lend, lease, or redistribute the Application.

2.2. Any updates provided by the Licensor will be subject to the terms of this license unless a separate license is provided for such update.

 

2.3. Reverse engineering, modifying, creating derivative works, or attempting to derive the source code of the Application or any part thereof, is strictly prohibited without the prior written consent of Xyken LLC.

 

2.4. Violation of any of these terms may result in prosecution and damages.

 

2.5. Xyken LLC reserves the right to modify the terms and conditions of the license at any time, with or without notifying you via email.

 

2.6. This license does not restrict your right to distribute or commercialize material that you generate using the Application.

3. DISCLAIMER

​3.1. The information and materials provided in this Application are for informational purposes only and are not intended to be a substitute for professional medical advice, diagnosis, or treatment. The Application is not intended to be used to diagnose, treat, cure, or prevent any medical condition, illness or disease.

3.2. The SnugFit O&P 3D Scanner and its customized versions are designed to assist in the creation of orthotic and prosthetic devices and should only be used by trained professionals. The app should not be used as the sole basis for any clinical decisions. 

3.3. The accuracy of the scans and measurements provided by the Application are not guaranteed and should be verified by a qualified professional.

3.4. The use of the Application is at your own risk. Xyken, its affiliates, and its licensors do not warrant that the Application will meet your requirements, be uninterrupted, timely, secure, or error-free. Xyken, its affiliates, and its licensors disclaim any and all liability arising from the use of this app or any other related services, including but not limited to, any direct, indirect, incidental, consequential, or special damages, including but not limited to, damages for loss of profits, goodwill, data or other intangible losses, regardless of whether Xyken has been advised of the possibility of such damages.

By using the Application, you acknowledge that you have read, understood, and agreed to these terms and conditions.

4.NO MAINTENANCE OR SUPPORT

4.1. Xyken LLC is not obligated, expressed or implied, to provide any maintenance, technical or other support for the Application. Upon termination of the license, Xyken shall have no obligation to provide any maintenance or support services for the Application to the Client.

4.2. Xyken LLC and the End-User acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the licensed Application.

5.USE OF DATA

By downloading and using the licensed Application, you acknowledge and agree that the Licensor may collect, access, and retain your personal information including, but not limited to, name, email, address, phone number, and application usage record. The Licensor's use of this material and information is subject to the Licensor's privacy policy (https://www.xyken.com/privacy-policy). Please read these agreements carefully to understand how your data will be used and protected.

6. INDEMNIFICATION

6.1. Client agrees to indemnify, defend, and hold harmless Xyken, its affiliates, and its officers, directors, personnel, agents, successors, and assigns from any losses incurred by Xyken due to any third-party claims arising from a security incident related to client data in Client's possession, failure or operation of the Application, or Client's use of the Application other than in accordance with this Agreement.

6.2. Xyken agrees to indemnify, defend, and hold harmless End-User, its officers, directors, personnel, agents, successors, and assigns from any losses incurred by Client due to any third-party claims arising from Client's or authorized user's use of the Application in accordance with this Agreement that infringes or misappropriates any third-party US Intellectual Property Rights. However, this indemnification does not apply if the alleged infringement arises from Client's or authorized user's use of Xyken Application other than in accordance with this Agreement, third-party products, Client data, access to or use of Xyken Application in combination with unauthorized hardware, system, software, network, or other Application or service, modification of Xyken Application other than by or on behalf of Xyken or with Xyken's written approval, or failure to implement modifications, upgrades, replacements, or enhancements made available by or on behalf of Xyken in a timely manner.

6.3. Indemnification Procedure: If a party believes it is entitled to indemnification pursuant to Section 6.1 or Section 6.2, the party shall promptly notify the other party in writing. The Indemnitor shall assume control of the defense and employ counsel of its choice to handle and defend the claim. The Indemnitee may participate in and observe the proceedings with counsel of its own choosing. The Indemnitor cannot settle any claim on terms that adversely affect the Indemnitee's rights without the Indemnitee's prior written consent, which cannot be unreasonably withheld. If the Indemnitor fails or refuses to assume control of the defense, the Indemnitee may defend the claim or settle the claim after giving notice to the Indemnitor. The failure of the Indemnitee to perform any obligations under this section does not relieve the Indemnitor of its obligations, except to the extent that the Indemnitor demonstrates material prejudice resulting from such failure.

6.4. Mitigation: If Xyken believes the Application or Xyken Application infringes or violates any third-party intellectual property rights or if Client's use of the Application or other Xyken Application is enjoined, Xyken may obtain the right for Client to continue to use the Application or modify or replace the Application to make it non-infringing, while providing equivalent features and functionality. Alternatively, Xyken may terminate this Agreement and require Client to immediately cease using the Application and Xyken Application. This section sets forth Client's sole remedies and Xyken's sole liability and obligation for any actual, threatened, or alleged claims of infringement or misappropriation of intellectual property rights.

 

7.LIMITATIONS OF LIABILITY

7.1. Neither Party shall be liable under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages, regardless of whether such Party was advised of the possibility of such losses or damages or whether such losses or damages were otherwise foreseeable. This limitation of liability applies to all claims arising from or in connection with this Agreement, except as expressly provided in Section 7.3.

7.2. Xyken's aggregate liability arising out of or related to this Agreement, including any claims arising from or in connection with the licensed Application, shall not exceed the monthly fee paid by the Client under the Agreement prior to the date the claim arose. Xyken shall not be liable for any claims, losses, damages, injuries, or expenses arising from or in connection with any injuries to life, limb, or health claimed by any party seeking damages to the Client.

7.3. The limitations and exclusions set forth in Sections 7.1 and 7.2 shall not apply to damages caused by a Party's willful misconduct, fraud, or gross negligence.

 

8. SUSPENSION OR TERMINIATION OF THE APPLICAITON  

 Xyken may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate, or otherwise deny Client's, any Authorized User's, or any other Person's access to or use of all or any part of the Application or Xyken Application, without incurring any resulting obligation or liability, if: (a) Xyken receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Xyken to do so; or (b) Xyken believes, in its good faith and reasonable discretion, that: (i) Client or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Application beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated.      Section 8 does not limit any of Xyken' other rights or remedies, whether at law, in equity, or under this Agreement.

9.WARRANTY AND WARRANTY DISCLAIMER​

9.1. Xyken LLC warrants that at the time of download, the Application is free from spyware, trojan horses, viruses, or any other malware, and that it functions as described in the user documentation.

9.2. Xyken LLC does not provide a warranty for the Application if it cannot be executed on the required device, if it has been modified or handled inappropriately, or if it has been combined with inappropriate hardware or software or used with inappropriate accessories, whether by the user or by third parties, or for any other reasons outside of Xyken LLC's control that may affect the Application's executability.

9.3. You must inspect the Application immediately after installation and notify Xyken LLC about any issues discovered via email provided in the Product Claims section. Any defect report must be mailed or emailed within 30 days of discovery and will be taken into consideration and further investigated.

9.4. If Xyken LLC confirms that the Application is defective, we will remedy the situation either by solving the defect or by providing a substitute delivery.

9.5. THE APPLICATION IS PROVIDED "AS IS" AND "AS AVAILABLE". EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 10.1, XYKEN LLC PROVIDES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. XYKEN LLC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALINGS, USAGE OR TRADE PRACTICE.

9.6. CLIENT ACKNOWLEDGES AND AGREES THAT XYKEN LLC DOES NOT GUARANTEE OR WARRANT THAT THE APPLICATION WILL OPERATE ERROR-FREE OR UNINTERRUPTED, AND THAT XYKEN LLC WILL NOT NECESSARILY CORRECT ERRORS.

10. TERMINATION OF THE AGREEMENT

10.1. Termination for Cause. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party commits a material breach of this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.

10.2. Termination for Convenience. Either Party may terminate this Agreement for convenience, for any reason or no reason, upon sixty (60) days prior written notice to Xyken.  

 

10.3. Insolvency. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

11.LEGAL COMPLIANCE

You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and that you are not listed on any U.S. Government list of prohibited or restricted parties.

12.INTELLECTUAL PROPERTY RIGHTS

Xyken LLC is the sole owner of all right, title, and interest in the Application and all its associated Intellectual Property Rights.

The Application developed by Xyken LLC for the Client, including any modifications or enhancements made by Xyken LLC, shall remain the property of Xyken LLC, and the Client shall have no ownership rights in the app or any associated Intellectual Property Rights.

The Client shall have the non-exclusive, non-transferable right to use the customized app and all its associated Intellectual Property Rights solely for their own business purposes and for the use of their authorized users.

The Client shall have the right to modify the app name or title, app color skin, and app logo to their liking, provided that such modifications do not infringe upon any of Xyken LLC's Intellectual Property Rights.

The Client shall retain all right, title, and interest in and to their modified app name or title, app color skin, and app logo. However, the Client shall not have any ownership rights in the underlying app or its associated Intellectual Property Rights, including any modifications or enhancements made by Xyken LLC.

The Client shall not be entitled to sublicense or transfer any of its rights under this Agreement to any third party without the prior written consent of Xyken LLC.

The Client acknowledges that Xyken LLC shall own all right, title, and interest in any improvements, modifications, or enhancements made to the app by Xyken LLC, including any associated Intellectual Property Rights.

In the event of any third-party claim that the Client's possession or use of the customized app infringes upon any third-party's Intellectual Property Rights, Xyken LLC shall be solely responsible for the investigation, defense, settlement, and discharge of any such claim.

13.APPLICABLE LAW

13.1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to the conflicts of laws provisions thereof. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be submitted to arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

13.2. Jurisdiction. The Parties agree that any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in a federal court in the Alexandria Division of the Eastern District of Virginia or in a state court in Fairfax County, Virginia, and each Party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.

14.MISCELLANEOUS​

14.1. Severability. If any provision of this agreement is deemed invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect. The parties shall replace the invalid provision with a valid one that achieves the same economic effect as the invalid provision.

14.2. Force Majeure. Neither Party shall be deemed to be in default of this Agreement to the extent that such Party’s performance of its obligations hereunder or thereunder in whole or in part, or such Party’s attempts to cure any breach hereunder or thereunder are delayed or prevented as a result of causes beyond such Party’s reasonable control, including without limitation, acts of God, natural disasters, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations, Third Party nonperformance, or failures or fluctuations in electrical power, heat, light, air conditioning, or telecommunications equipment (each, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the affected Party shall promptly notify the other Party in writing and provide reasonable details of the event and its anticipated duration. The affected Party’s time for performance hereunder shall be extended by the actual time of delay caused by such occurrence. The failure to pay monies when due hereunder shall not be excused by a Force Majeure Event. In the event a Force Majeure prevents or impairs a Party’s performance of its obligations under this Agreement for a period of 45 consecutive days, the other Party may terminate this Agreement without penalty upon notice.

14.3. Assignment; Successors and Assigns. Neither Party shall assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other Party; provided, however, that (i) Xyken may assign, sell, transfer, delegate or otherwise dispose of this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other Party solely in connection with a merger, consolidation, sale of all or substantially all of such Xyken assets or stock, or like event; and (ii) Xyken may assign and/or subcontract all or a portion of this Agreement to an Affiliate without the consent of Client. Any purported assignment, sale, transfer, delegation, or other disposition by a Party, except as permitted herein, shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.

15.CONTACT INFORMATION

For general inquiries, complaints, questions, or claims concerning the licensed Application, please contact:

 

Xyken LLC

7921 Jones Branch Dr., #392

McLean, VA 22102

 

info@xyken.com

Updated: November 11, 2023

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